Is the White Collar Offender Privileged?

Abstract

Much public commentary has asserted or implied that the American criminal-justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not accurate—at least not in the ways commonly believed. Law and practice of sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges in white collar cases easier to bring and harder to defend against than in other cases. Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their exposure to criminal liability. Corporate actors enjoy a large advantage in legal-defense resources relative to others. That advantage, however, does not pay off quite as one might expect. A fully developed claim of privilege can be sustained only by showing that basic American arrangements of criminal law and policing have been misguided. This argument would fault the justice system for failing to treat illegal behavior within firms as requiring omnipresent policing, looser definitions of criminality, the harshest of punishments, and rethinking of the right to counsel. Those who believe corporate offenders are privileged should confront the difficulties that argument entails. And they should be aware of the complications that follow from overreliance on punishment to deal with intractable problems of ex ante regulatory control.

Is the White Collar Offender Privileged?

Abstract

Much public commentary has asserted or implied that the American criminal-justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not accurate—at least not in the ways commonly believed. Law and practice of sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges in white collar cases easier to bring and harder to defend against than in other cases. Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their exposure to criminal liability. Corporate actors enjoy a large advantage in legal-defense resources relative to others. That advantage, however, does not pay off quite as one might expect. A fully developed claim of privilege can be sustained only by showing that basic American arrangements of criminal law and policing have been misguided. This argument would fault the justice system for failing to treat illegal behavior within firms as requiring omnipresent policing, looser definitions of criminality, the harshest of punishments, and rethinking of the right to counsel. Those who believe corporate offenders are privileged should confront the difficulties that argument entails. And they should be aware of the complications that follow from overreliance on punishment to deal with intractable problems of ex ante regulatory control.